TFR Pty Ltd trading as Design Workshop Australia v Burwood Council

[2019] NSWLEC 1447

Land and Environment Court

New South Wales

Medium Neutral Citation:	TFR Pty Ltd trading as Design Workshop Australia v Burwood Council [2019] NSWLEC 1447
Hearing dates:	Conciliation conference on 30 July 2019; 15 August 2019; 20 August 2019; 13 September 2019
Date of orders:	20 September 2019
Decision date:	20 September 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) Leave is granted to the Applicant to rely upon the amended plans and documents listed in condition 1 of Annexure ‘A’ hereto. (2) The Applicant is to pay the Respondent’s costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $12,500. (3) The Applicant’s written request under clause 4.6 of the Burwood Local Environmental Plan 2012 (LEP) seeking a variation of the development control for height of buildings set out in clause 4.3 of the LEP is upheld. (4) The appeal is upheld. (5) Development application 2018.87 for the construction of a five storey boarding house development at 40-46 Stanley Street, Burwood is approved subject to the conditions contained in Annexure ‘A’ hereto.
Catchwords:	DEVELOPMENT APPEAL – boarding house – affordable rental housing – conciliation conference – agreement between parties – orders
Legislation Cited:	Burwood Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) State Environmental Planning Policy No 65–Design Quality of Residential Apartment Development
Texts Cited:	Apartment Design Guide Burwood Development Control Plan 2013
Category:	Principal judgment
Parties:	TFR Pty Ltd trading as Design Workshop Australia (Applicant) Burwood Council (Respondent)
Representation:	Counsel: C Marginson (Solicitor) (Applicant) T O’Connor (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Houston Dearn O’Connor (Respondent)
File Number(s):	2018/367765
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Burwood Council (the Respondent) of Development Application No. 87/2018 for the demolition of existing structures on the site and the construction of a 5 storey boarding house development containing 110 rooms, 2 basement car parking levels and associated landscaping works at 40-46 Stanley Street, Burwood.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 July 2019, 15 August 2019, 20 August 2019 and 13 September 2019. The conference commenced with an onsite view at which a number of objectors provided submissions. Following the onsite view, the parties including the Applicant, the Council and their experts, returned to Council chambers to continue the conciliation conference. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The terms agreed at the conference required the preparation of amended plans, and a period of notification, for which an adjournment was granted. The amendments to the plans may be summarised as follows:

• A reduction in boarding rooms from 110 to 95 boarding rooms

• Increased setback to the north east of the site to ensure solar access to the communal open space

• Improved deep soil for landscaping to the Stanley Street setback

• Clarification and amendment to materials and finishes

4. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 13 September 2019.

5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development by grant of the Certificate subject to agreed conditions annexed to the s 34 agreement.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. The parties explained to me during the conference as to how conformance with the jurisdictional prerequisites has been achieved, including the requirements of the State Environmental Planning Policy (Affordable Rental Housing) (ARH SEPP) and a written request to justify the contravention of the height of buildings development standard as set out in clause 4.3 of the Burwood Local Environmental Plan 2012 (BLEP) pursuant to cl 4.6 of the (BLEP) as follows:

1. The site is located within the R1 General Residential zone as identified by the BLEP, which permits development for the purpose of a ‘boarding house’ with consent, and where the objectives of the R1 General residential zone are in the following terms:

•  To provide for the housing needs of the community.

• To provide for a variety of housing types and densities.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

2. I am satisfied that the standards evident in the amended plans, and associated documents are consistent with the standards set out in cl 30 of the ARH SEPP, and that the proposed development will result in an outcome that is compatible with the character of the local area as defined by the relevant development controls.

3. I have considered the written request prepared by Mr Stephen Kerr of City Plan dated 12 August 2019 and I have formed an opinion of satisfaction that the request adequately addresses cl 4.6 of the BLEP for the following reasons:

• The site is subject to a maximum building height of 14m according to cl 4.3 of the BLEP. While the majority of the proposed development is within the maximum permissible height, a portion of the rooftop exceeds the height by a maximum of 1.47m, at the location of the lift overrun, which is an exceedance of 10.5%.

• I am satisfied that compliance with the development standard is unreasonable or unnecessary in the circumstances as the objectives of the development standard are achieved notwithstanding the non-compliance with the standard. In particular, the proposed boarding house is of a similar scale to recently approved medium density developments in the immediate area, consistent with objective (a), and the exceedance does not impose adverse view, privacy or overshadowing impacts on adjoining properties, in accordance with objective (b).

• I am satisfied that there are sufficient environmental planning grounds to justify the contravening of the development standard as the elements that contravene the height are compatible with the appearance, scale and density of existing and desired future development in the vicinity, while not being easily visible from the public domain, and because the exceedance results from a floor-to-floor height of 3.05m, intended to ensure 2.7m ceiling height within boarding rooms.

• In arriving at this state of satisfaction, I also consider the amendments summarised at [3] to be relevant in that the adoption of setbacks found in the Apartment Design Guide, associated with the State Environmental Planning Policy No 65 –Design Quality of Residential Apartment Development, has resulted in floor space that would otherwise be permissible within a reduced setback under the Burwood Development Control Plan 2013 being relocated to upper levels of the proposed development without the imposition of adverse impacts.

• In my view, the written request demonstrates that the contravention of the standard results in an outcome that is consistent with the objectives of the development standard, and with the objectives of the R1 General Residential Density applicable the site and reproduced at [7(1)].

8. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

9. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

10. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

11. The Court orders that:

1. Leave is granted to the Applicant to rely upon the amended plans and documents listed in condition 1 of Annexure ‘A’ hereto.

2. The Applicant is to pay the Respondent’s costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $12,500.

3. The Applicant’s written request under clause 4.6 of the Burwood Local Environmental Plan 2012 (LEP) seeking a variation of the development control for height of buildings set out in clause 4.3 of the LEP is upheld.

4. The appeal is upheld.

5. Development application 2018.87 for the construction of a five storey boarding house development at 40-46 Stanley Street, Burwood is approved subject to the conditions contained in Annexure ‘A’ hereto.

……………………..

T Horton

Commissioner of the Court

Annexure A (461 KB)

Plans Burwood Council (2.73 MB)

Landscape Plans (5.29 MB)

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Decision last updated: 20 September 2019